2. AFFIRMATIVE ACTION: HISTORY AND RATIONALE

Neither this review nor the current debate over affirmative action
occur in a historical vacuum. This and the following two sections
provide the context for this review, and, indeed, for federal
affirmative action programs. First, we examine the history of
the creation of modern affirmative action programs. Then, in section
3, we review the general evidence on the effectiveness of affirmative
action. Finally, section 4 examines the extent to which discrimination
and exclusion persist today, suggesting that it is too soon to
abandon the affirmative action tool.

2.1 Background

The current scope of affirmative action programs is best understood
as an outgrowth and continuation of our national effort to remedy
subjugation of racial and ethnic minorities and of women -- subjugation
in place at our nation's founding and still the law of the land
within the lifetime of "baby-boomers." Some affirmative
action efforts began before the great burst of civil rights statutes
in the 1950s and 1960s. But affirmative efforts did not truly
take hold until it became clear that anti-discrimination statutes
alone were not enough to break longstanding patterns of discrimination.

For much of this century, racial and ethnic minorities and women
have confronted legal and social exclusion. African Americans
and Hispanic Americans were segregated into low wage jobs, usually
agricultural. Asian Americans, who were forbidden by law from
owning land, worked fields to which they could not hold title.
Women were barred by laws in many states from entering entire
occupations, such as mining, fire fighting, bartending, law, and
medicine.

The first significant wave of progress in enhancing employment
opportunities for African Americans and women came during the
labor shortages of World War II and immediately afterwards, before
the use of affirmative action. Nonetheless, racial separation
continued, and African Americans were still segregated for the
most part into low wage jobs into the 1960s. For Hispanic Americans,
employment opportunity remained seriously restricted into the
1970s. Whole industries and categories of employment were, in
effect, all-white, all-male. In thousands of towns and cities,
police departments and fire departments remained all white and
male; Women and minorities were forbidden to even apply. In grocery
and department stores, clerks were white and janitors and elevator
operators were black. Generations of African Americans swept the
floors in factories while denied the opportunity to become higher
paid operatives on the machines. In businesses such as the canning
industry, Asian Americans were not only precluded from becoming
managers, but were housed in physically segregated living quarters.
Stereotypical assumptions that women would be only parttime or
temporary workers resulted in their exclusion from a full range
of job opportunities. Newspaper job listings were segregated by
gender. Women also confronted other barriers to full inclusion:
lower pay and fewer benefits than men, even when performing similar
jobs; losing their jobs if they married or became pregnant; and
sexual harassment on the job.

African Americans, even if they were college-educated, worked
as bellboys, porters and domestics, unless they could manage to
get a scarce teaching position in the all-black school -- which
was usually the only alternative to preaching, or perhaps working
in the post office. In higher education most African Americans
attended predominantly black colleges, many established by states
as segregated institutions. Most concentrated on teacher training
to the exclusion of professional education. Students who were
interested in business had to take business education instead
of administration. A few went to predominantly white institutions,
in which by 1954, about one percent of entering freshman were
black.

Asian Americans and Hispanic Americans, were legally barred from
attending some public schools. And women were systematically excluded
from some private and state funded colleges, universities, and
professional schools well into the 1970s. In general, it is clear
that separation of the races and relegation of women to the sidelines
remained the norm for most of this century.

The civil rights movement had its dramatic victories -- Brown
v. Board of Education and the other cases striking down segregation,
the Civil Rights Act of 1964, the Voting Rights Act of 1965 --
which helped advance the Constitution's promise of equal opportunity
to all minorities and women. Even after passage of the civil rights
laws beginning in the 1960s, however, the road to equal opportunity
for minorities and women was difficult, and programs often very
slow.

These judicial and legislative victories were not enough to overcome
long-entrenched discrimination, for several reasons. In part,
these measures frequently focused only on issues of formal rights
(such as the right to vote) that were particularly susceptible
to judicial or statutory resolution. In part, the difficulty was
that formal litigation-related strategies are inevitably resource-intensive
and often dependent upon clear "smoking gun" evidence
of overt bias or bigotry, whereas prejudice can take on myriad
subtle, yet effective, forms. Thus, private and public institutions
alike too often seemed impervious to the winds of change, remaining
all-white or all-male long after court decisions or statutes formally
ended discrimination.

As a result, both the courts and Republican and Democratic administrations
turned to race- and gender-conscious remedies as a way to end
entrenched discrimination. These remedies were developed after
periods of experimentation had shown that other means too often
failed to correct the problems. here are some typical examples:

In July 1970, a federal district court enjoined the State
of Alabama from continuing to discriminate against blacks in the
hiring of state troopers. The court found that "in the thirty-seven
year history of the patrol there has never been a black trooper."
The order included detailed, non-numerical provisions for assuring
an end to discrimination, such as stringent controls on the civil
service certification procedure and an extensive program of recruitment
of minority job applicants. Eighteen months later, not a single
black had been hired as a state trooper or into a civilian position
connected with the troopers. The district court then entered a
further order requiring the hiring of one qualified black
trooper or support person applicant for each white hired until
25 percent of the force was comprised of blacks. By the time the
case reached the Court of Appeals in 1974, 25 black troopers and
80 black support personnel had been hired. (4) The
U.S. Supreme Court ultimately affirmed the orders.

In 1979, women represented only 4 percent of the entry-level
officers in the San Francisco police department. By 1985, under
an affirmative action plan ordered in a case in which the DOJ
sued the City for discrimination, the number of women in the entry
class had risen to 175, or 14.5 percent.

Similarly, a federal district court review of the San Francisco
Fire Department in 1987 led to a consent decree which increased
the number of blacks in officer positions from 7 to 31, Hispanics
from 12 to 55, and Asians from 0 to 10; women were admitted as
firefighters for the very first time.

In 1975, a federal district court found that Local 28 of
the Sheet Metal Workers' International Association had discriminated
against non-white workers in recruitment, training and admission
to the union. The court found that the union had (1) adopted discriminatory
admission criteria, (2) restricted the size of its membership
to deny access to minorities, (3) selectively organized shops
with few minority workers and (4) discriminated in favor of white
applicants seeking to transfer from sister locals. The court found
that the record was replete with instances of bad faith efforts
to prevent or delay the admission of minorities. The court established
a 29 percent membership goal, reflecting the percentage of minorities
in the relevant labor pool. The Supreme Court affirmed the relief.

Prior to 1974, Kaiser Aluminum hired only persons with prior craft
experience as craft workers at its Gramercy, Louisiana plant.
Because blacks traditionally had been excluded from the craft
unions, only 5 of 273 skilled craft workers at the plant were
black. In response, Kaiser together with the union, established
its own training program to fill craft jobs with the proviso that
50 percent of new trainees were to be black until the percentage
of black craft workers in the plant matched the percentage of
blacks in the local labor pool. The Supreme Court held this program
to be lawful.

On March 23, 1973, the Nixon administration's Department of Justice,
Department of Labor, Equal Employment Opportunity Commission and
the Civil Service Commission issued a joint memorandum titled
"State and Local Employment Practices Guide." The guide
points out that the Nixon Administration... since September of
1969, recognized that goals and timetables... are a proper means
for helping to implement the nation's commitment to equal employment
opportunity." The memorandum stressed that strict quotas
are unacceptable but that goals and timetables' are entirely different
and reasonable tools. (Attorney General John Mitchell led the
legal defense of the distinction between goals and quotas.)In
July of 1986, Justice O'Connor referred to this document, and
the merits of fair and effective affirmative action goals, in
the concurring portion of her opinion in Local 28, Sheet Metal
Workers v. EEOC. In doing so, she joined the Court majority's
support for numerical guidelines in affirmative action programs.

2.2 Fair Employment -- The Executive Order

The longest-standing federal affirmative action program has its
roots in World War II. The Executive Order barring discrimination
in the federal government and by war industries was issued by
President Franklin Roosevelt. The action was taken to forestall
a planned march on Washington organized by A. Philip Randolph,
the President of the Brotherhood of Sleeping Car Porters. Roosevelt's
order barred discrimination against blacks by defense contractors,
and established the first Fair Employment Practices Committee.
However, federal compliance programs were routinely understaffed,
underfunded and lacked enforcement authority.

After World War II, gains that had been made by women and blacks
receded as returning GIs reclaimed their jobs. By 1960, the 10
million workers on the payrolls of the 100 largest defense contractors
included few blacks. The $7.5 billion in federal grants-in-aid
to the states and cities for highway, school, airport, school
and public housing construction went almost exclusively to whites.
The U.S. Employment Service, which provided funds for state-operated
employment bureaus, encouraged skilled blacks to register for
unskilled jobs, accepted requests from white employers and made
no efforts to get employers to accept African American workers.
The President's Committee on Government Contracts, chaired by
Vice-President Nixon in 1959, blamed "the indifference of
employers to establishing a positive policy of nondiscrimination,"
stated that such indifference was more prevalent than over discrimination,
and called for remedial steps.

In response to the civil rights movement, President John F. Kennedy
created a Committee on Equal Employment Opportunity in 1961 and
issued Executive Order 10925, which used the term "affirmative
action" to refer to measures designed to achieve non-discrimination.
In 1965, President Johnson issued Executive Order 11246 requiring
federal contractors to take affirmative action to ensure equality
of employment opportunity without regard to race, religion and
national origin. In 1968, gender was added to the protected categories.

In the Johnson Administration, the Labor Department Office of
Federal Contract Compliance (OFCCP) started pre-award compliance
for federal contracts over $1 million. The Office began with construction
contractors, who were required to set goals and timetables under
a regulation issued to implement the Order in 1968. However, under
pressure from unions and the General Accounting Office, which
found the process too vague, OFCCP discontinued the effort.

But in the most far-reaching federal expansion of affirmative
action, the "goals and timetables" plan was revived
by President Nixon and Labor Secretary George Shultz in 1969.
In issuing the so-called "Philadelphia Order," Assistant
Secretary Arthur Fletcher said:

Equal employment opportunity in these [construction] trades in
the Philadelphia area is still far from a reality. The unions
in these trades still have only about 1.6 percent minority group
membership and they continue to engage in practices, including
the granting of referral priorities to union members and to persons
who have work experience under union contracts, which result in
few negroes being referred for employment. We find, therefore,
that special measures are required to provide equal employment
opportunity in these seven trades. (5)

President Nixon later remembered, "A good job is as basic
and important a civil right as a good education . . . I felt that
the plan Shultz devised, which would require such [affirmative]
action by law, was both necessary and right. We would not impose
quotas, but would require federal contractors to show affirmative
action' to meet the goals of increasing minority employment." (6)

Order No. 4 in 1970 extended the plan to non-construction federal
contractors.

2.3 Fair Employment -- Enforcement of Title VII

In July, 1963, in the midst of the civil rights campaign in Birmingham,
Alabama, President John F. Kennedy appeared on national television
to propose a civil rights bill. The measure proposed outlawing
discrimination in public accommodations, permitting a cut-off
of federal funds from discriminating institutions, and expanding
the equal employment opportunity committee he had established.
After President Kennedy's assassination, Title VII was enacted
as part of the Civil Rights Act of 1964, seeking to end discrimination
by large private employers whether or not they had government
contracts. The Equal Employment Opportunity Commission, established
by the Act, is charged with enforcing the anti-discrimination
laws through prevention of employment discrimination and resolution
of complaints. The Act is designed to make employees whole for
illegal discrimination and to encourage employers to end discrimination.
Title VII was substantially strengthened in 1972 amendments, signed
by President Nixon. As Supreme Court holdings concluded, the legislative
history to the 1972 amendments made clear that Congress approved
of race- and gender-conscious remedies that had been developed
by the courts in enforcing the 1964 Act.

Court-ordered affirmative action to remedy violations of Title
VII developed on a parallel track with the Executive Order program,
as another remedial effort to stop existing discrimination and
prevent its recurrence. The Supreme Court's most comprehensive
review of affirmative action has occurred in the employment area.

2.4 Education

Discrimination in education was the target of the original breakthrough
civil rights cases. Indeed, because education is the gateway to
opportunity, education has consistently been a central focus of
civil rights efforts. But for nearly two decades following the
original court decisions, educational institutions -- particularly
colleges and graduate schools -- remained predominantly white
and male. In 1955, only 4.9 percent of college students ages 18-24
were black. This figure rose to 6.5 percent during the next five
years, but by 1965 had slumped back to 4.9 percent. Only in the
wake of affirmative action measures in the late 1960s and early
1970s did the percentage of black college students begin to climb
steadily (in 1970, 7.8 percent of college students were black;
in 1980, 9.1 percent; and in 1990, 11.3 percent).

The 1978 Bakke case set the parameters of educational affirmative
action. (7) The
University of California at Davis medical school had
reserved 16 available places for qualified minorities . In a splintered
decision, with Justice Powell casting the deciding vote, the Supreme
Court essentially decided that setting aside a specific number
of places in the absence of proof of past discrimination was illegal,
but that minority status could be used as a factor in admissions
. The desire to obtain a "diverse" student body was
found to be a compelling goal in the educational context in Justice
Powell's controlling opinion..

Increased educational opportunity has, in fact, revolutionized
education, although some gaps persist. While the enrollment of
women in higher education has risen steadily, with women now earning
nearly fifty percent of all bachelor's and masters degrees, they
earn only one third of doctorate and first professional degrees,
and continue to lag in math, engineering, and the physical sciences
at both the undergraduate and the doctoral levels.

Through the availability of student aid programs and aggressive
recruitment and retention programs, the college-going rate for
blacks and whites who graduated from high school was about equal
by 1977. Since 1977, however, the proportion of black 18-24 year
old high school graduates enrolled in college has not kept pace
with that of white students. While the percentage of black students
who have graduated from high school has increased approximately
20 percent in the past 25 years, the portion of black high school
student graduates attending college is now 25 percent less than
that of white students. (8)

The story is similar for the Hispanic enrollment rate. In 1976,
the college-going rate for 16-24 year old Hispanics who had recently
graduated from high school (53 percent) actually exceeded the
white rate (49 percent). Since then, the Hispanic college-going
rate has stagnated while the white rate has increased signficantly.
By 1994, the white college-going rate had risen to 64 percent,
whereas the Hispanic rate had fallen to 49 percent. (9)